This was a conviction for assault with intent to murder.
There is evidence that Wells, the injured party, struck appellant on the head or face first—that is, before appellant cut Wells. It also appears that defendant received a severe blow near the eye. This may have been inflicted by the blow given by Wells before defendant cut him, or by Wells after he was cut. Wells was physically able to knock defendant down with a chair.
Ho weapon was seen in the hands of either party. Whether the wound was inflicted near defendant’s eye before or after the cut is important, as bearing upon manslaughter and self defense. *224But the witnesses swear positively that Wells struck defendant before defendant did any act of violence, either consummated or threatened, and that the blow was upon the face, or head. Upon this state of case, the learned judge instructed the jury that “an assault and battery so slight as to show no intention to inflict pain or injury is not in law deemed an adequate cause,”
How this law could be applicable to the above state of facts we can not understand; for, when viewed in the light of surrounding facts, there could be no doubt of the intention to injure. Let it be conceded that the wound near the eye was inflicted after the cut—still, the blow given the defendant by Wells, when viewed in connection with the attending facts, was evidently given with the intention to injure him. Of this there can not be a doubt. This being the case, the abstract law charged above had no application, and was calculated to induce the jury to believe that the learned judge believed that the battery was not so intended.
Again, suppose the blow produced the wound near the eye. If this was the fact, then it was not only adequate cause to produce the passion, but might have been complete justification. Was this phase of the case presented to the jury? It was not. Counsel for appellant, seeing the injurious effects of the charge of the court above cited, attempted to prevent it by requesting the law applicable to the very facts of the case. The court was requested to instruct the jury that an assault and battery by Wells, causing pain or bloodshed, would be adequate cause. This was refused and exceptions reserved.
There was error in charging the abstract law merely that an assault and battery so slight as to show no intention to inflict pain or injury was not adequate cause, because not applicable to the state of case presented by the evidence above given. There was error in refusing to give the instruction requested by counsel for defendant, because made imperative by the error in giving the charge above, and because demanded by the evidence in the case.
Upon the subject of mutual combat the learned judge instructed the jury as follows: “The law does not permit men to engage in mutual combat, and when two ór more persons engage willingly in mutual combat, each is responsible for the consequences of his own act.” As law to be applied to the case, or any phase of the case, the above proposition contains no light for the jury. Let us suppose that A and B willingly entered *225into a combat, neither intending to kill the other, and A inflicts great injury upon B, and is killed by B. How B would be responsible for the consequences of his own acts, it is true, but of what offense would B be guilty if he kills A under the passion produced by the great injury? The answer to this question would furnish practical information to the jury. Propositions of law may instruct the jury in some instances, but the above proposition, though correct, can not aid the jury in arriving at the offense committed by B.
Opinion delivered March 10, 1888.If B is the aggressor, produces the difficulty—assaults A, but does not intend to kill, and A inflicts great injury upon B, and B, under the passion aroused by the injury, kills A, he would be guilty of manslaughter. (Art. 597, Penal Code.) Hence if B and A enter willingly into a combat, without intending to kill, and A inflicts great injury upon B, and B kills A in a passion caused by the injuries, B would be guilty of manslaughter, both being aggressors.
. There was evidence showing a mutual combat; hence the. charge of the court was not simply abstract error, the case de ■ manding a proper charge upon the subject. Under the charge given, the jury may have believed that appellant should be held to the full measure of guilt in case he willingly entered into the combat; that the serious injury was eliminated from the case by the reason of the fact that the parties willingly entered into the combat.
We are not to be understood as intimating that, in the opinion of this court, appellant received his injuries before he cut Wells. It is not placed beyond reasonable doubt that he did receive them after he stabbed Wells. This being the case, a charge upon mutual combat was called for, especially so in view of the fact that the court submitted to the jury the above proposition, which could not possibly give the jury any practical information upon this subject, and was calculated to mislead the jury to the injury of appellant.
Other objections urged to the charge seem well taken, but are not of such a character as would require a reversal of the judgment.
The judgment is reversed, and the cause remanded for a new trial.
Reversed and remanded.